Gill v. Doubherty, 2020 NY Slip Op 06758 [188 AD3d 1008] November 18, 2020 Appellate Division, Second Department is a reversal of Supreme Court’s denial of a CPLR 3211 motion.

“In an action, inter alia, to recover damages for violation of Judiciary Law § 487 and defamation, the defendants Iona College and Kathleen McElroy appeal, and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, separately appeal, from an order of the Supreme Court, Westchester County (Gerald E. Loehr, J.), entered May 13, 2019. The order denied the separate motions of the defendants Iona College and Kathleen McElroy and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against each of them.

Ordered that the order is reversed, on the law, with one bill of costs, and the motion of the defendants Iona College and Kathleen McElroy and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against each of them is granted.

The plaintiff commenced this action, inter alia, to recover damages for violation of Judiciary Law § 487 and defamation against Anthony D. Dougherty, Tarter Krinsky & Drogin, LLP, Iona College (hereinafter Iona), and Kathleen McElroy. The plaintiff worked for the City of New Rochelle and previously worked as General Counsel for Iona. Dougherty worked for the law firm Tarter Krinsky & Drogin, LLP (hereinafter together the TKD defendants). McElroy worked as General Counsel for Iona (hereinafter together the Iona defendants).”

“We disagree with the Supreme Court’s determination to deny the Iona defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them. The statements made with respect to the plaintiff in the prior hybrid action/proceeding were pertinent to that action/proceeding, and were therefore protected by absolute privilege (see Ifantides v Wisniewski, 181 AD3d 575, 576 [2020]; Weinstock v Sanders, 144 AD3d 1019, 1021 [2016]; Brady v Gaudelli, 137 AD3d 951, 952 [2016]; Rabiea v Stein, 69 AD3d 700, 701 [2010]). Further, the context of the complained-of statement in a campus publication was such that a reasonable reader would have concluded that he or she was reading an opinion, and not facts, about the plaintiff (see Rosner v Amazon.com, 132 AD3d 835, 837 [2015]; Silverman v Daily News, L.P., 129 AD3d 1054, 1055 [2015]; Hollander v Cayton, 145 AD2d 605, 605-606 [1988]). Likewise, the cause of action alleging prima facie tort failed because the plaintiff did not sufficiently plead “malicious intent or disinterested malevolence as the sole motive for the challenged conduct” of the Iona defendants, and failed to sufficiently plead special damages (Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 772 [2017]; see Nachbar v Cornwall Yacht Club, 160 AD3d 972, 973-974 [2018]).

Additionally, we disagree with the Supreme Court’s determination to deny the TKD defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them. The plaintiff failed to allege sufficient facts to establish that Dougherty intended to deceive through his actions in the prior hybrid action/proceeding (see Klein v Rieff, 135 AD3d 910, 912 [2016]; Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491 [2014]; see also Doscher v Meyer, 177 AD3d 697, 699 [2019]). Notably, “ '[a]ssertion of unfounded allegations in a pleading, even if made for improper purposes, does not provide a basis for liability under [Judiciary Law § 487]’ ” (Ticketmaster Corp. v Lidsky, 245 AD2d 142, 143 [1997], quoting Thomas v Chamberlain, D’Amanda, Oppenheimer & Greenfield, 115 AD2d 999, 999-1000 [1985]). Moreover, the cause of action alleging a violation of Judiciary Law § 487 failed to sufficiently allege that the plaintiff suffered an injury proximately caused by any claimed deceit or collusion on the part of Dougherty, and no such injury can reasonably be inferred from the amended complaint (see Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 911 [2015]). The cause of action alleging defamation failed because the challenged statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action (see Ifantides v Wisniewski, 181 AD3d at 576; Weinstock v Sanders, 144 AD3d at 1021; Brady v Gaudelli, 137 AD3d at 952; El Jamal v Weil, 116 AD3d 732, 734 [2014]; Rabiea v Stein, 69 AD3d at 701). Tarter Krinsky & Drogin, LLP, cannot be held vicariously liable for Dougherty’s primary liability absent a cognizable theory of liability against Dougherty (see Karaduman v Newsday, Inc., 51 NY2d 531, 546 [1980]; Pereira v St. Joseph’s Cemetery, 54 AD3d 835, 837 [2008]; Rojas v Feliz, 24 AD3d 652 [2005]).”

Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.